Citation Nr: 1509258
Decision Date: 03/03/15 Archive Date: 03/17/15
DOCKET NO. 11-13 775 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUE
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
ATTORNEY FOR THE BOARD
A-L Evans, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1980 to June 1984.
This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA).
In his substantive appeal to the Board, the Veteran requested a hearing before a member of the Board. He was notified of his scheduled April 2013 hearing by letter in March 2013, but did not attend the hearing or subsequently request a new hearing. His hearing request is deemed withdrawn.
In May 2014, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998).
FINDINGS OF FACT
1. The Veteran's service-connected disabilities are burn scar on the left lower extremity (rated zero percent); burn scar on the right lower extremity (rated zero percent); burn scar on the right upper extremity (rated zero percent). The combined disability rating is noncompensable (zero percent).
2. The preponderance of the evidence shows that the Veteran's service-connected disabilities do not preclude substantially gainful employment.
CONCLUSION OF LAW
The criteria for a TDIU rating have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014).
A standard January 2008 letter satisfied the duty to notify provisions.
VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c).
The Veteran's service treatment records have been obtained. Post-service VA treatment records have also been obtained, including records from the Social Security Administration (SSA).
The Veteran was afforded a VA examination. The Board finds that the examination is adequate because the examiners discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, VA's duty to assist has been met.
There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.
II. Analysis
A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.
To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19.
The Veteran's service-connected disabilities are burn scar on the left lower extremity (rated zero percent); burn scar on the right lower extremity (rated zero percent); burn scar on the right upper extremity (rated zero percent). The combined disability rating is noncompensable (zero percent). Thus, the Veteran does not meet the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a).
Nonetheless, it is VA's policy that all Veterans who are unable to secure a substantially gainful occupation by reason of service- connected disabilities "shall be rated totally disabled." See 38 C.F.R. § 4.16(b). Significantly, the Court has held that the Board has no power to award a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the Board does not have the power to award a TDIU on an extraschedular basis in the first instance in the absence of a referral to VA's Director of Compensation and Pension, and there was no such referral in this case, the Board will consider whether a remand for such referral is warranted. The Veteran is not prejudiced by such consideration because the RO considered an extraschedular TDIU in its March 2011 statement of the case.
Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor).
The analysis now turns to "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
SSA records dated in April 2010 show that the Veteran was granted SSA benefits due to a lumbar herniation. It was noted that the Veteran's low back disability more than minimally affected his ability to work. The SSA records also indicated that a vocational expert reported that there were no jobs that existed in significant numbers that the Veteran could perform. However, the Veteran is not service connected for a lower back condition.
The Veteran was afforded a VA scar examination in December 2010. The examination revealed that the Veteran had scars on his right upper extremity and his bilateral lower extremities. The examiner noted that the Veteran was currently unemployed but not retired and was unable to work due to back pain. The examiner reported that the Veteran's scars did not have a significant effect on the Veteran's occupation or usual daily activities.
After a review of the entire record, the Board finds that the preponderance of the evidence shows that the functional limitations imposed by the Veteran's service-connected disabilities do not preclude his performance of substantially gainful employment. Although the SSA records noted that the Veteran's lower back condition rendered him unable to perform regular employment, he is not service connected for this disability. Therefore, the SSA records do not support a finding that the Veteran is unemployable by reason of his presently service-connected disabilities.
There is no medical opinion supporting the Veteran's argument that his service-connected disabilities preclude substantially gainful employment. The only medical opinion of record regarding the Veteran's ability to secure or follow a substantially gainful occupation is that of the December 2010 VA scar examiner. In rendering the opinion, the examiner considered the Veteran's reported history, the records in the claims file, and the examination findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board finds that the opinion of the VA examiner is of greater probative value as to whether the Veteran's service-connected disabilities, without regard to age or nonservice connected disabilities, render him unemployable.
The Board is sympathetic to the Veteran's contention that his service-connected disabilities have an impact on his ability to secure or follow a substantially gainful occupation. However, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question in a claim for a TDIU rating is whether the Veteran is rendered incapable of engaging in employment consistent with his education and experience, due to his service-connected disabilities. In this case, the probative VA medical opinion reflects that the Veteran's service-connected disabilities alone do not preclude him from engaging in gainful employment. Accordingly, remand for referral to the VA's Director of Compensation and Pension is not warranted and entitlement to a TDIU on an extraschedular basis is denied.
In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
ORDER
Entitlement to a TDIU is denied.
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M. N. HYLAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs